* Local Rule 47.5 provides: “The publication of opinions that

have no precedential value and merely decide particular cases on

the basis of well-settled principles of law imposes needless

expense on the public and burdens on the legal profession.”

Pursuant to this Rule, the Court has determined that this opinion

should not be published.

UNITED STATES COURT OF APPEALS

For the Fifth Circuit

___________________________

No. 96-20688

Summary Calendar

__________________________

CHANDRELLE L. WHITE-PAGE, individually and as next friend of the

minor children of GLEN PAGE, GLEN PAGE, JR. and MARQUS MIGUEL

GLENZELL PAGE, and PERCY PAGE and LAVERNE CHERRY, individually

and as representatives of the estate of GLEN PAGE, 

Plaintiffs-Appellants,

VERSUS

HARRIS COUNTY, ET AL,

Defendants

HARRIS COUNTY; ORGANIZED CRIME AND NARCOTICS TASK FORCE,

 

Defendants-Appellees.

___________________________________________

Appeal from the United States District Court 

for the Southern District of Texas

(H-94-CV-2592)

__________________________________________

May 1, 1997

Before REYNALDO G. GARZA, HIGGINBOTHAM, and DeMOSS, Circuit Judges.

PER CURIAM:*

This is an appeal from the granting of a summary judgment in

favor of Harris County, defendant-appellee, on an action for

violations of the Texas Tort Claims Act, 42 U.S.C. § 1983, and an
2

alleged contract agreement. Plaintiffs are the survivors of Glen

Page, a confidential informant who was killed during a “buy-bust”

sting operation. They allege that the actions of the Harris County

Organized Crime and Task Force in executing this operation

generated a “state-created danger” which ultimately resulted in

Page’s death. They also contend that Harris County deprived Glen

Page of a property interest without due process by failing to pay

him or his survivors for his involvement in the operation in

accordance with a “Confidential Informant Agreement”. Along the

same vein, Plaintiffs also allege a breach of contract. 

Texas Tort Claims Act

A governmental body is generally immune from suit unless such

immunity is waived by statute. Under the Texas Tort Claims Act, a

governmental entity is liable for personal injury and death caused

by a condition or use of tangible personal or real property if the

governmental unit would, were it a private person, be liable to the

claimant according to Texas law. See TEX. CIV. PRAC. & REM. CODE

Ann. § 101.021(2) (Vernon 1986).

The Texas Supreme Court has defined “use” in the context of

this statute as “to put forth or bring into action or service; to

employ or apply to for a given purpose.” Salcedo v. El Paso Hosp.

Dist., 659 S.W.2d 30, 33 (Tex. 1983). A non-use of property can

not support a claim under the Texas Tort Claims Act. Kassen v.
3

Hatley, 887 S.W.2d 4, 14 (Tex. 1994).

Plaintiffs’ claims under the Act fails for two reasons.

First, Plaintiffs fail to allege any “use” of personal property in

any of their complaints that would waive the sovereign immunity

found in the Act. Second, they have not alleged any negligence

that would be actionable under Texas law if committed by a private

person.

Section 1983 Liability

To state a claim under 42 U.S.C. § 1983, a plaintiff must:

(1) allege a violation of rights secured by the Constitution

or laws of the United States; and

(2) demonstrate that the alleged deprivation was committed by

a person acting under color of state law.

 

West v. Atkins, 487 U.S. 42, 48 (1988). A governmental entity may

be held liable under § 1983 for a deprivation of rights protected

by the Constitution or federal law only if that deprivation is

inflicted pursuant to an official policy. Webster v. City of

Houston, 735 F.2d 838, 841 (5th Cir. 1984), rev’d on other grounds,

739 F.2d 993 (5th Cir. 1984). We held in Webster that “official

policy” includes both a written policy and/or a persistent,

widespread practice of city officials or employees, which, although

not authorized by officially adopted and promulgated policy, is so

common and well settled as to constitute a custom that fairly

represents municipal policy.
4

Appellants originally had four theories under which § 1983

was implicated. However, they abandoned two of these four theories

on appeal and alleged only “state-created danger” and deprivation

of property interest under § 1983.

a. State-Created Danger

Appellants allege that Harris County had a policy of using

confidential informants in undercover buy-bust operations in a

manner which endangered these informant’s lives. More

specifically, they allege that Harris County failed to

affirmatively protect Page against bodily injury arising out of a

state-created danger. 

“When state actors knowingly place a person in danger, the due

process clause of the constitution has been held to render them

accountable for the foreseeable injuries that result from their

conduct whether or not the victim was in formal state ‘custody.’”

Johnson v. Dallas Indep. School Dist., 38 F.3d 198, 200 (5th Cir.

1994), cert. denied, __ U.S. __, 115 S.Ct. 1361 (1995). However,

the environment created by the state actors must be dangerous; they

must know that it is dangerous; and, to be liable, they must have

used their authority to create the opportunity that would not have

otherwise existed for the third party’s crime to occur. Id. at

201. 

Although drug transactions are inherently dangerous, Page’s
5

participation in this deal was completely of his own volition. His

actions, from the time he made initial contact with Harris County

up to the events resulting in his unfortunate death, were

voluntary. At no time was Page under the “control” of any Harris

County employee in creating the opportunity to complete the

transaction. 

Furthermore, Plaintiffs have failed to prove that any policy

of Harris County, whether written or otherwise, placed Page in a

state-created danger.

b. Property Interest

Plaintiffs allege that Page was deprived of a property

interest without due process of law when the County failed to pay

him for his participation in the drug deal which resulted in his

death. They base this contention on an alleged “cooperating

individual agreement” which is not in evidence. Appellants claim

that Harris County lost this agreement and that the failure to

produce this document should shift the burden to the Defendant to

prove that the agreement did not create a constitutionally

protected property interest. We, as did the district court,

disagree. Even though there is some testimony that an agreement

might have existed, there is no indication nor any evidence that

Harris County was a signatory to such an agreement or that an

agreement was kept in its custody. Moreover, this agreement cannot

be located or was never executed. In any event, without the
6

agreement in evidence, Plaintiffs cannot make a prima facie claim

of a protected property interest in compensation.

Plaintiffs have also failed to show that any federal

regulations or task force guidelines created any analogous

expectations in compensation.

Breach of Contract

Appellants also claim that the district court erred in sua

sponte granting summary judgment on their breach of contract claim,

an issue that was never addressed in the magistrate judge’s

memorandum and order. The breach of contract issue was first

raised by the appellants in their response to Harris County’s

initial motion for summary judgment. Harris County then briefly

addressed the issue in its reply to the response. Plaintiffs

subsequently filed their third amended original complaint adding

this breach of contract claim. The Magistrate then granted Harris

County’s motion, but made a note commenting that in light of the

amended petition this granting of a summary judgment was only a

partial summary judgment. The Magistrate never addressed the

breach of contract issue except to find that there was no contract

and no entitlement to compensation under contract. The district

court then adopted the Magistrate’s memorandum and order and

granted summary judgment on all claims, including the breach of

contract claim. 
7

Appellants claim that this was an improper granting of summary

judgment because it rested on grounds that were not urged or

briefed by the movant. They cite to a number of cases which hold

that the granting of a summary judgment is improper when the nonmovant has no notice of the grounds upon which the judgment was

granted. However, the circumstances presented here are different

from the slew of cases cited by the appellant because those cases

centered around whether the non-movant had notice of the issue on

which summary judgment was granted. In this case, not only did the

non-movants have notice, they provided it by writing in depth on an

issue that was not even raised in the opposing party’s original

motion. 

The question raised by a court’s sua sponte action is whether

the party against whom the judgment will be entered was given

sufficient advance notice and an adequate opportunity to

demonstrate why summary judgment should not be granted. See Nowlin

v. Resolution Trust Corp, 33 F.3d 498, 504 (5th. Cir. 1994).

Obviously, both of these requirements were satisfied under the

present circumstances. The Plaintiffs had adequate notice and

every opportunity to present a breach of contract case.

Plaintiffs have not been able to prove that a contract existed

(based on their property interest claim) and they do not claim to

have any additional evidence which may lead us to find otherwise.

If there is no contract to prove up a property interest there can
8

be no breach of contract. 

If the case is one appropriate for the entry of summary

judgment, the fact that it may be granted on a ground different

from that specified in the motion does not warrant disturbing the

judgment on appeal. Broderick Woods Prods. Co. v. United States,

195 F.2d 433, 436 (10th Cir. 1952). “The fact that the judgment

was granted on a reason different from that assigned by the

defendant [in his summary judgment motion] is immaterial, where, as

here, the motion was properly granted on the undisputed facts shown

on an issue presented by plaintiff’s complaint.” Board of Nat.

Missions of Presbyterian Church in the U.S. v. Smith, 182 F.2d 362,

364-365 (7th Cir. 1950).

Moreover, even if we did find the lower court erred in

granting summary judgment, the harmless error doctrine applies

because, as stated earlier, Plaintiffs do not claim they have any

additional evidence to present and the evidence they have presented

does not reflect the existence of a contract. See Leatherman v.

Tarrant County Narcotics Intelligence and Coordination Unit, 28

F.3d 1388, 1398 (5th Cir. 1994). 

Based on the foregoing, we accordingly AFFIRM the decision of

the district court.